Citation Nr: 20023066 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 19-34 101 DATE: April 2, 2020 ORDER 1. Entitlement to a compensable rating for a scar associated with squamous cell carcinoma in remission, status post left-lower lung lobectomy (hereinafter, scar), sought on the basis of the length of the scar, is denied. 2. Entitlement to an increased rating in excess of 10 percent for the scar, sought on the grounds that the scar is painful, is denied. FINDINGS OF FACT 1. The scar has the area of 2.4 square centimeters. 2. The scar is painful but not unstable. CONCLUSIONS OF LAW 1. The criteria for a compensable rating have not been met based on the area of the scar. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. 2. The criteria for an increased rating in excess of 10 percent have not been met based on the scar being painful but not unstable. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DCs 7801, 7802, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1960 to June 1975, and from March 1985 to May 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the November 2018 and February 2020 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The Veteran is service connected for squamous cell carcinoma in remission, status post left-lower lung lobectomy performed in October 2017. In October 2018, the Veteran was afforded a VA examination in connection with his carcinoma. The VA examiner recorded that, as a residual of the Veteran’s left-lower lung lobectomy, the Veteran had a linear lateral-left-chest scar that was painful but not unstable. The VA examiner clarified that the scar measured 12 centimeters in length and 0.2 centimeter in width. The VA examiner also recorded the Veteran’s report that the scar was tender but found that the scar did not cause the Veteran any functional limitation, to include limitation on motion. In November 2018, the RO issued a rating decision awarding secondary service connection for the Veteran’s scar effective the date of his October 2018 VA examination. The November 2018 rating decision evaluated the scar at 10 percent under DC 7804 based on the fact that the scar was painful, and as noncompensable under DC 7802 based on the scar area of the 2.4 square centimeters: the product of multiplying the length by the width, i.e., 12 centimeters by 0.2 centimeter. In December 2018, the Veteran filed a Notice of Disagreement (NOD), where he extensively detailed his position as to his carcinoma in remission. As to the rating of his scar, the Veteran merely stated that he did not “agree with 10 [percent] for pain.” In September 2019, the RO issued a Statement of the Case (SOC). In October 2019, the Veteran filed a Substantive Appeal and again extensively detailed his position as to his carcinoma in remission. However, as to the rating of his scar, the Veteran merely stated he “disagree[d] with 0% and 10% [ratings].” In November 2019, the RO issued a Supplemental SOC. In November 2019, the Veteran filled an Appellant’s Brief expressing his belief that his lobectomy scar merited “an evaluation higher than 10% disabling” because he had “submitted [a lay statement] on October 19, 2019, . . . that the incision site [was] constant and severe [and] reported pain and swelling on ‘the entire left side.’” However, the record shows that the Veteran’s October 19, 2019, lay statement addressed exclusively the rating of his carcinoma in remission, and it did not contain any statement with regard to the Veteran’s scar. Further, the Veteran’s October 19, 2019, lay statement, the report of his October 2018 VA examination, and the Veteran’s medical treatment records did not reflect his report of “pain and swelling on the entire left side.” Therefore, the Board construes the Appellant’s Brief as asserting that the Veteran had “pain and swelling on [his] entire left side.” In February 2020, the RO issued a rating decision continuing the evaluation of the Veteran’s scar at 10 percent under DC 7804 based on the fact that the scar was painful but not unstable, and also continuing a noncompensable rating of the scar under DC 7802 based on the scar area. In March 2020, the Veteran’s representative filed an addendum Appellant’s Brief stating that the Veteran was “entitled to an increased rating for left[-]lobectomy scars,” i.e., using the noun “scar” in plural. However, the evidence shows that the Veteran has only one left-lobectomy scar. Disability ratings are determined by applying the criteria set forth in the Rating Schedule found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered due to or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating is assigned. See 38 C.F.R. § 4.7. All benefit of the doubt is resolved in the claimant’s favor. 38 C.F.R. § 4.3. Here, the relevant criteria are set forth in DCs 7801, 7802, 7804, and 7805. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating under DC 7804 requires three or four scars that are unstable or painful, and a 30 percent rating is appropriate for five or more scars that are unstable or painful. Note (1) to DC 7804 provides that an unstable scar is one where there is frequent loss of covering of skin over the scar. Note (2) to DC 7804 provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Note (3) to DC 7804 provides that scars evaluated under, inter alia, DCs 7801 or 7802 may also receive an additional rating under DC 7804. Here, the evidence shows that, during the entire period on appeal, the Veteran’s scar was not unstable, although it was painful. Given that it is a single scar, which is painful but not unstable, the Board is without a basis to assign a rating in excess of 10 percent under DC 7804. Because the preponderance of the evidence is against finding that an increased rating in excess of 10 percent for the Veteran’s scar is warranted under DC 7804, the doctrine of the benefit of the doubt is not for application, and his claim based on the fact that his scar is painful is denied. The Board acknowledges the Veteran’s statement that he has experienced “pain and swelling on the entire left side.” However, if the statement was meant to assert that the Veteran has been suffering from a musculoskeletal pain, rather than scar pain, the Board notes that the Veteran is not service connected for a disease or injury to his musculoskeletal system, and a rating based on such a pain is unwarranted. Accordingly, the Board turns to the Veteran’s claims based on the area of his scar. DC 7801 addresses deep scars not of the head, face, or neck, while DC 7802 addresses superficial scars not of the head, face, or neck. Under DC 7801, entitlement to a 10 percent rating requires a scar area of at least 39 square centimeters, and a rating in excess of 10 percent requires a larger scar area. Similarly, under DC 7802, entitlement to a 10 percent rating requires a scar area of at least 929 square centimeters, and a rating in excess of 10 percent requires a larger scar area. Here, the Veteran’s scar has the area of 2.4 centimeters. Accordingly, it does not warrant a compensable rating under DC 7801 or 7802, and the analysis of whether his scar is deep or superficial is not needed, although the Board notes that the nature of the Veteran’s surgery suggests a deep scar. The Board, however, is mindful that the Veteran’s scar is linear, while the rating criteria under DCs 7801 and 7802 address nonlinear scars. The Board, therefore, turns to DC 7805, which addresses the evaluation of scars, to include linear scars, for any disabling effect(s) not considered in the criteria under in DCs 7800–7804. However, DC 7805 does not support a compensable evaluation in this case. Here, the VA examiner found that the Veteran’s scar did not limit his motion and did not cause him any functional limitation. Accordingly, the Board is without a basis to conclude that the Veteran’s scar warrants a compensable rating under DC 7805. Hence, regardless of how the Board were to examine the Veteran’s claim, the evidence is against finding that his 2.4 square centimeters linear scar warrants a compensable rating based on its size measurements. Therefore, the doctrine of the benefit of the doubt is not for application, and the Veteran’s claim based on the length of his scar is also denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.